On September 15, 2022, the Department of Justice (DOJ) announced several significant changes to its corporate criminal enforcement program in a memorandum. The newly released guidance focuses on: (1) ensuring that individuals responsible for misconduct are held accountable by offering incentives for prompt corporate cooperation, (2) creating transparent rules around corporate accountability, and (3) clarifying the procedures surrounding the imposition of independent compliance monitors.
In a speech discussing the changes, Deputy Attorney General Lisa Monaco described the updated policies as a “mix of incentives and deterrence” that gives “general counsels and chief compliance officers the tools they need to make a business case for responsible corporate behavior.”
Guidance on individual accountability
The DOJ memorandum focuses primarily on promoting individual accountability. In her speech, Monaco noted that the DOJ’s “number one priority is individual accountability” and “going after individuals who commit and profit from corporate crime.”
First, the DOJ memorandum focuses on the importance of a company’s complete and timely disclosures during investigations into individual misconduct. The memorandum instructs corporations to promptly disclose to the DOJ all relevant, non-privileged facts surrounding the misconduct. The memorandum also states that, going forward, DOJ prosecutors must specifically assess whether the corporation cooperated in a timely fashion. The guidance emphasizes that delayed disclosure will jeopardize a company’s eligibility to receive cooperation credit.
Second, the guidance notes that DOJ prosecutors will endeavor to complete investigations into individuals prior to or at the same time as the entry of a resolution against the corporation. If the DOJ resolves a corporate case prior to completing its investigation into the responsible individuals, the corporate resolution must be accompanied by a memorandum that discusses all potentially culpable individuals and provides an update as to the status of the individual investigation.
Third, the guidance advises prosecutors to consider pursuing charges against culpable individuals even if they are simultaneously being investigated abroad. The memorandum states that, before declining to commence a prosecution in the United States because an individual is being investigated for the misconduct abroad, prosecutors must make a determination as to whether there is a significant likelihood that the individual will be subject to effective prosecution in the other jurisdiction. Prosecutors are instructed to consider: (1) the strength of the other jurisdiction’s interest in the prosecution, (2) the other jurisdiction’s ability and willingness to prosecute effectively, and (3) the consequences that might follow if the individual is convicted in the other jurisdiction.